What kind of pre-nups will be enforced?

CBS.MarketWatch.com

SAN FRANCISCO (Office.com) -- While once the exclusive reserve of the wealthy, prenuptial agreements are becoming common even for commoners. As more lawyers are asked to prepare such documents, they will undoubtedly encounter strange, or downright deviant, client requests -- some of which may be not be enforceable.

"Basically, you have to put all the cards on the table face up, so that people know what they're giving up."

Lynne Z. Gold-Bikin, Wolk, Block, Schorr & Solis-Cohen

One of the more extreme examples: Myles Spires Jr., a former pastor of a Washington, D.C., Pentecostal church, entered into what could only be called a draconian prenuptial agreement with his wife, demanding that she, among other things, "carry out requests of the husband in strict accordance (to) timeliness, sequence, scheduling, etc."

Other draconian clauses: that the "wife shall in no case obtain money ... without express permission of the husband," and that she "shall not dispute husband on any matters." The agreement stipulated that a failure to abide by these demands would result in the wife forfeiting all property rights -- and custody of her children.

Spires asked the courts to enforce the contract and award him sole custody of their three children. On appeal, Judge Frank Schwelb, of the District of Columia Court of Appeals, agreed with a lower court ruling that the agreement was unenforceable. In fact, Schwelb thought the contract so heinous that he compared it to a license for slavery.

Lynne Z. Gold-Bikin, partner with Wolk, Block, Schorr & Solis-Cohen, spoke about when couples should consider prenuptials and what sorts of agreements will and will not be upheld by the courts.

Develop reasonable pre-nups

Gold-Bikin is a past chairperson of the American Bar Association's (ABA) Family Law Section and created the ABA's nationally acclaimed PARTNERS program, which teaches high school students how to negotiate relationship difficulties and prevent divorce.

Under what circumstances would you recommend marital agreements for couples?

Gold-Bikin: Under the following circumstances I recommend marital agreements: First, one party has a large estate going into the marriage. Two, when there are children from prior marriages. Three, where there is a potential inheritance or gift from one of the party's family members they wish to protect. Four, when there is a family business that they wish to protect.

How can each party best protect themselves when it comes to preparing a marital agreement?

Gold-Bikin: You need to have full disclosure, you need to have counsel, and you need to understand the rights you are giving up. Don't be naive thinking that "I don't need to worry about this because he's going to take care of me." He won't.

Prenuptial agreements can put you into slavery. A lot of women believe that their marriages are going to be perfect. And, even though their lawyer told them not sign it, they go ahead and do so.

What are the tests for a valid marital agreement?

Gold-Bikin: In most states the tests are that there is fair, informed disclosure. In some states, they require that there be counsel or the opportunity to have counsel. But basically, you have to put all the cards on the table face up, so that people know what they're giving up. And, there can't be any duress or fraud.

Under what circumstances could a judge throw out a marital agreement?

Gold-Bikin: A judge can throw out a marital agreement if it was signed under duress or under conditions of fraud. In states that require a reasonable settlement, the agreement can be thrown out if the settlement is unreasonable.

In the case of Spires vs. Spires, the husband attempted to gain custody of his three children through such a marital agreement. To what extent can one sign away rights such as child custody?

Gold-Bikin: Custody is always modifiable. The court is always thinking about the best interest of the children.

Does freedom of religion allow a marital agreement that enforces certain beliefs under penalty of loss of property?

Gold-Bikin: No. It's a blanket "no."

Which religious activities, if any, can one regulate by marital contract?

Gold-Bikin: We have a case in our state that says that even in post-nuptial agreements, you can't do it. In this case, one of the parents wanted to raise the children Catholic, I believe. But, the court threw that out.

Can one enforce other nonreligious activities such as vegetarianism or prohibiting smoking?

Gold-Bikin: You cannot enforce vegetarianism or nonsmoking through these sorts of agreements -- though it may come up in a custody agreement. In cases in courts all over the country, they have said that if you want to keep custody or even partial custody or residential placement, you can't smoke.

You can't control someone else's behavior, in a prenuptial agreement. The purpose of a prenuptial agreement is to change what the law would otherwise provide. The law does not say anything about vegetarianism.

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